Citation: Regina v Dungay [2001] NSWCCA 443
Court: NSW Court of Criminal Appeal
Date: 1 November 2001
Judge(s): Ipp AJA; Studdert J; Greg James J
Background
The appellant was convicted by a District Court jury of sexual intercourse without consent following an alleged assault near Crescent Head on New Year's Day 1999. The complainant alleged she was assaulted by several men after accepting a lift in a car. Notably, the complainant herself gave evidence that exculpated the appellant, saying he had shown her "respect" during the incident.
The prosecution's case rested almost entirely on an electronically recorded police interview conducted at around 11.00 am on the morning of the arrest. The Crown alleged that the interview contained a confession by the appellant. The audio tape of that interview was subsequently lost, leaving only a transcript admitted as an aide memoire.
At trial, defence counsel objected to the admission of the interview on the basis that the arrest was unlawful and the interview was obtained unfairly. The trial judge overruled the objection. The appellant appealed against both conviction and sentence.
Legal Issues
- Whether the arrest was unlawful because the appellant was not told the reason for his arrest at the time it occurred
- Whether the arrest was independently unlawful because it was carried out solely for investigative purposes, with no genuine intention to bring the appellant before a judicial officer
- Whether the interview evidence should have been excluded under section 138(1) of the Evidence Act 1995 as having been obtained through serious police misconduct
- Whether, absent the interview, there was any remaining evidence capable of supporting the conviction
Decision
Illegality of the arrest: failure to give reasons
The arresting officer, Constable Senz, initially declined to inform the appellant of the reason for his arrest, telling the men only that they were "required to be spoken to" at the police station. The trial judge found this failure was excusable because Senz was initially outnumbered. The Court of Criminal Appeal disagreed, finding that by the time the arrests were actually made, a second officer had arrived and there was no longer any proper basis to withhold that information. The Court accepted, however, that a senior officer subsequently informed the appellant he was suspected of sexual assault within a reasonable time, so this ground alone was not determinative.
Illegality of the arrest: purely investigative purpose
The Court found the more significant problem was that the arrest had been carried out solely to enable police questioning. The common law, as stated in Christie v Leachinsky and confirmed in Adams v Kennedy, requires that an arrest be made with the genuine intention of bringing the person before a judicial officer. An arrest undertaken purely to facilitate an interview is unlawful, regardless of whether Part 10A of the Crimes Act 1900 otherwise authorises the conduct of the investigation. The Court found that this had occurred here, rendering the arrest illegal.
Admissibility of the interview under section 138(1)
Even where evidence is obtained illegally, section 138(1) of the Evidence Act 1995 requires a court to exclude it unless the desirability of admitting it outweighs the undesirability of doing so. The Court applied the test from Williams v R and R v Foster, asking whether it would be unfair to use the appellant's own words against him having regard to all the circumstances. It found several compounding factors beyond the illegal arrest: a police officer had made a false statement to the appellant during the interview, and police had deliberately withheld from the appellant the fact that the complainant's own statement exculpated him. These features, taken together with the nature of the recorded admissions, tipped the balance firmly against admission.
Consequence of exclusion
Once the interview was excluded, no evidence remained that implicated the appellant in the offence. The Court set aside the jury's verdict and entered a verdict of acquittal.
Orders Made
- Appeal upheld
- Verdict of the jury set aside
- Verdict of acquittal entered
Key Takeaways
- An arrest is unlawful at common law if it is carried out solely for investigative purposes, with no genuine intention to bring the person before a judicial officer. This remains so even where police otherwise comply with Part 10A of the Crimes Act 1900.
- The requirement to inform an arrested person of the reason for their arrest is a substantive common law obligation, not merely a procedural formality. It must be met at or promptly after the point of arrest, once it is safe and practicable to do so.
- Under section 138(1) of the Evidence Act 1995, an illegally obtained confession is not automatically excluded. Courts weigh the desirability of admission against the undesirability of condoning the conduct involved, with reference to all circumstances of the case.
- Where police compound an illegal arrest by making false statements during an interview and concealing exculpatory material from the suspect, those factors weigh heavily in favour of exclusion. The Court of Criminal Appeal treated the cumulative nature of the misconduct as decisive.
- Exclusion of the sole inculpating evidence does not merely warrant a retrial. Where nothing else supports the conviction, a verdict of acquittal must be entered.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), Part 10A
- Evidence Act 1995 (NSW), s 138(1)
Cases
- Christie v Leachinsky (1947) AC 573
- Adams v Kennedy (2000) 49 NSWLR 78
- Williams v R (1986) 161 CLR 278
- R v Foster (1993) 67 ALJR 550
- R v Ainsworth (1991) 57 A Crim R 174
- R v Kane [2001] NSWCCA 150
- R v Lee (1950) 82 CLR 133
- R v Jeffries (1946) 47 SR (NSW) 284